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Does The FMLA Provide Coverage For Caring For . . . Grandchildren?

Recently, a federal appellate court issued a decision which should make employers even more cautious in administering their FMLA policies.

Suzan requested FMLA leave to care for her married, adult daughter, who was undergoing treatment for thyroid cancer. Suzan’s employer, Harbor Crest, granted her request for FMLA leave. While on FMLA leave, in the course of caring for her daughter, Suzan also helped care for her daughter’s children.

Harbor Crest did not ask about the duration of her leave, but Suzan regularly called in as requested. Suzan’s daughter’s recovery was doubtful, but her physician stated that she would need assistance at least through July 2011. Knowing that, Harbor Crest assumed Suzan would not return until July 2011, well beyond her available allotment of FMLA leave, and hired a replacement. Before she used all of her available leave, Suzan attempted to return to work but found that she no longer had a job. Suzan then filed a lawsuit.

The Seventh Circuit Court of Appeals (covering Indiana, Illinois and Wisconsin) ruled in Suzan’s favor. Harbor Crest first argued that Suzan forfeited her right to FMLA protection because she failed to inform Harbor Crest exactly how much leave she would take. The court noted that Suzan did not know how much leave she would need, given her daughter’s prognosis. The court reasoned that, in cases involving unforeseeable leave, the FMLA regulations do not require an employee to tell an employer how much leave is needed, especially if the employee does not know exactly when she can return to work.

Harbor Crest also argued that Suzan was not protected under the FMLA because her daughter’s physician and her daughter’s husband, not Suzan, provided the primary “care” to her daughter. Suzan, Harbor Crest argued, merely cared for her grandchildren, and while the FMLA allows leave to care for children and parents, it does not extend to care for grandchildren.

The court rejected this argument. Although Suzan was not her daughter’s “primary” caregiver, primary care is not required under the FMLA. In fact, the word “primary” does not appear in the statutory definition of “care.” The Court stated that the “FMLA does not treat care of grandchildren as disqualifying, if the employee also cares for an eligible relative such as a daughter.” The Court found that a combination of assistance to one’s daughter, plus care of grandchildren that could take a load off the daughter’s mind and feet, counts as “care” under the FMLA.

Takeaways…

This decision has the potential of being exploited by savvy employees and counsel. However, the court made clear that, if an employee provided care exclusively for grandchildren, then there would be a basis for an employer to argue that leave was not protected under the FMLA.

In addition, the court stated that some forms of familial assistance would be far too tangential to qualify as “care” under the FMLA because they would not provide the kind of psychological benefits to a covered relative, such as those provided by Suzan to her daughter. Unfortunately, the court did not elaborate or provide specific examples.  It is the employer’s burden to argue that an employee’s assistance in such situations is too slight to qualify for FMLA protection.

For more information, please contact Mark McAnulty at mmcanulty@KDDK.com or (812) 423-3183; or contact any member of the KDDK Labor and Employment Law Practice Team.

About the Author

Mark A. McAnulty

Mark A. McAnulty, an attorney at Kahn, Dees, Donovan & Kahn, LLP, in Evansville, Indiana, practices business law and labor and employment law, and is a member of the KDDK litigation and trial services practice team. Licensed to practice in Indiana, Illinois, Kentucky, and Missouri, Mark has represented clients in administrative and judicial proceedings throughout the tri-state area. Mark counsels clients regarding hiring and disciplinary issues, as well as compliance with local, state and federal employment laws. Mark also works with clients in reviewing and drafting employment contracts, non-compete agreements, and employee handbooks; and has advised and represented employers in labor management and union avoidance matters.